The Emory Chalking Incident, and When Speech Becomes Intimidation

The Emory pro-Trump chalking incident is a symbolic flashpoint for who is permitted a voice at our nation’s universities.  At this moment in history, universities must ensure that all students feel safe and included while allowing for cultural and political pluralism.  To do this, universities should not cede entirely to students the line between speech and intimidation.

 

Over the weekend, chalked messages supporting Donald Trump’s presidential candidacy appeared across Emory’s campus.  Most of the chalkings simply said “Trump 2016” but some students reported seeing “Accept the Inevitable” and “Build a Wall,” a reference to Trump’s anti-immigration policies.  The chalkings were spread around campus and did not conform to Emory’s policies, which permit chalking only on horizontal surfaces (although this is probably true of many of the chalkings at Emory).  Students, upset by the chalkings and what they represent, staged a protest and met with Emory’s administration.  This is all as it should be.

But then, on Monday, students expressed to Emory’s President James W. Wagner that they felt threatened, unsafe, and intimidated.  They wondered why the university responded comparatively swiftly to swastikas found outside the Jewish fraternity house (turns out, the university responded only to a second set of swastikas).  In response, the university investigated the identity of the pro-Trump chalker(s).  Unable to identify the chalker, President Wagner told the students that Emory would be implementing a series of measures, including refining the process for reporting bias incidents.

Emory students are correct that promoting Trump’s values, including his desire to ban immigration of all Muslims to this country, undermine Emory’s values of diversity and inclusion.  But investigating, with an eye to shaming and punishing, the student creators of political speech during an election would undermine any university’s values even more.  No student should feel objectively unsafe on his or her campus.  But if we allow the term “unsafe” to cover chalkings of political expression advocating for a candidate who is (regrettably) on track to become the Republican nominee for President, then the thing that is most unsafe on college campuses is speech.

In other countries and even in America’s history, the best way to censor speech has been to label it threatening and intimidating.  Our country has now taken a path different than most countries – speech that is too attenuated from violence, no matter how offensive, is rightfully considered expression, not intimidation.  If universities are going to remain true to their missions – to educate students, to expose them to knowledge, and to create open-minded, tolerant students capable of contributing to our democracy – universities must separate situations where a student truly is unsafe from a situation where a student “feels” unsafe.

Private universities, like Emory, do not need to obey the First Amendment, but they often, in contractual language, promise students a climate amenable to free speech and open dialog.  Additionally, free speech values dictate that some should at least consider following the First Amendment mandates guaranteed to students at public universities.  Our First Amendment jurisprudence is a useful guide for determining when speech that is not directly threatening is intimidating – when it is associated with a history of intimidation and violence, such as cross burning, and perhaps the swastika.  Unfortunately, the use of the swastika is widespread enough that it is not so directly and immediately linked to violence, but its association with genocide means that Emory was perhaps right to take action the second time swastikas appeared outside of a Jewish fraternity.  Trump chalkings, however, are, if anything, a threat to a student’s sense of inclusion, not a threat to their safety.

Diversity and inclusion are politically charged topics on college campuses.  Universities may certainly advance their own sense of their missions and create cultures where diversity is valued.  However, not everyone agrees about what diversity means and how it should be balanced with other goals.  In a pluralistic campus, for which universities should strive, students will have varying views on all political topics, including legitimate views across the spectrum on how to define and implement the value of diversity.  Perhaps the pro-Trump chalker(s) was making a statement about diversity on campus, or perhaps even was trying to vaguely intimidate students, given the violence that has occurred at some Trump rallies.  But the serious lack of clarity in the message, especially given the large percentage of Americans who support Trump, means Emory should consider the chalking speech to be an offensive but acceptable political viewpoint.  (Emory should also not use its chalking policies pretextually to investigate speech it disfavors.)

If the students at Emory are anything like the students where I teach at Harvard Law School, they are bright, engaged, and eager to voice their views about their education, for which they are paying so much money.  They are also perhaps more sensitive than students of earlier generations, but sensitivity has virtues and vices.  Students are more aware of each other’s and their own emotional needs, and that can often assist discussion, unless students lose too much of the heartiness that allows for robust American debates.   I would guess that the students who purport to feel “unsafe” are being sincere, not using this loaded term to stifle objectionable political speech.  The students, in their exploration and engagement with their world and education, are behaving like students.  The problem here is the administration, not the students.

America’s increasingly consumerist model of education, in conjunction with threats of lawsuits due to President Obama’s much more active Office of Civil Rights, means that universities are increasingly acquiescing to student complaints that run counter to a foundational purpose of universities – to challenge orthodoxies of every variety.  University presidents should listen to, and take seriously, student concerns regarding their feelings of safety and inclusion.  These students deserve of voice.  But universities need to develop a model where giving a voice to some does not necessarily rob others of their voice.  The best way to do this is to provide free speech for all.  I fear that the overresponse to incidents like the one at Emory are what create and fuel Trump voters.